NO. 4-01-0689

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

JOHN D. TERRY,

     	Plaintiff-Appellant,

	     v.

WATTS COPY SYSTEMS, INC., an Illinois

Corporation,

	     Defendant-Appellee.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Sangamon County

No. 01L59

Honorable

Leo J. Zappa, Jr.,

Judge Presiding.

_________________________________________________________________

		JUSTICE STEIGMANN delivered the opinion of the court:

		In February 1998, plaintiff, John D. Terry, was termi

nated from his employment at defendant, Watts Copy Systems, Inc.

(Watts).  Terry later filed a complaint with the Illinois Human

Rights Commission (Commission), alleging that he was fired

because of a handicap, in violation of section 2-102 of the Human

Rights Act (Act) (775 ILCS 5/2-102 (West 2000)).  In June 2000, a

hearing was held before an administrative law judge (ALJ) of the

Commission.  In December 2000, the ALJ entered a recommended

order and decision in Watts' favor, which the Commission later

adopted.  Terry appealed that decision (No. 4-01-0321), which is

a separate appeal.  

		In February 2001, Terry filed the underlying complaint

of retaliatory discharge, alleging that Watts fired him in

retaliation for exercising his rights under the Workers' Compen

sation Act (820 ILCS 305/1 through 30 (West 2000)).  Watts filed a motion to dismiss Terry's complaint, pursuant to section 2-619

of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4)

(West 2000)).  Following an April 2001 hearing, the trial court

granted Watts' motion to dismiss Terry's complaint, upon conclud

ing that it was barred by res judicata.  

		In May 2001, Terry filed a postjudgment motion and a

motion for partial summary judgment on the issue of liability. 

In July 2001, the trial court denied both motions. 

		Terry appeals, arguing that (1) his retaliatory dis

charge claim is not barred by the doctrines of res judicata or collateral estoppel; and (2) the trial court erred by denying his

summary judgment motion.  We reverse the court's dismissal of

Terry's complaint and decline to address its denial of Terry's

summary judgment motion.

	I. BACKGROUND

		Following a June 2000 evidentiary hearing, the ALJ made

the following findings of fact.  Terry began working for Watts as

a field service technician in 1992.  In March 1996, Terry's

supervisors talked to him about his excessive absenteeism, noting

that within a three-month period he had been absent 13 days.  In

December 1996, Lisa Haley, Watts' personnel manager, documented

14 absences between June 11, 1996, and December 17, 1996.  In May

1997, Terry's supervisor suspended Terry for one day due to his

having been absent on 13 days between January 1997 and May 1997.  Terry attributed his absences to his son's illness.  

		On November 4, 1997, Terry injured his back while

repairing a photocopier machine.  Terry did not return to work

until November 10, 1997, pursuant to a note from his physician

(identified in the record only as Dr. Jones).  On that date,

Terry returned to work but was restricted to light duty requiring

no lifting or bending.  Jones' note indicated that Terry could

return to normal duties on November 17, 1997.  While on light

duty, Terry was given a chair and photocopiers were brought to

him to be repaired and cleaned.

		On November 17, 1997, Terry resumed normal duties

repairing copiers, but at some point that day, he suffered back

pain and told his supervisor he could not complete his work.  The

next day, Terry saw Jones, who again placed him on light duty and

restricted him from bending or lifting.  Terry returned to his

light-duty assignment in Watts' reconditioning division.

		On November 24, 1997, Terry told Haley that he could

not handle light duty and would not return to work.  Terry went

back to Jones, who, after considering results of a magnetic

resonance imaging (MRI) test, wrote a note indicating that Terry

would not be able to work until further notice and would be

undergoing physical therapy.  Jones referred Terry to a doctor

identified in the record only as Dr. Riesenberger.  

		Riesenberger diagnosed Terry with a degenerative disc disease, which caused the outer fibers of his lumbar discs to

degrade and break.  While tears could heal properly and allow

Terry to return to work, the disease rendered Terry susceptible

to recurrent flare-ups of pain.  Terry received physical therapy

throughout December 1997 and January 1998.  On December 16, 1997,

he saw Jones, who issued another note indicating that Terry would

not be able to return to work until further notice.  

		During his treatments with Riesenberger, Terry informed

Riesenberger that he was a musician in a band and sometimes

helped set up the stage for performances.  Riesenberger encour

aged Terry to continue playing in the band as long as he used

proper lifting mechanics.

		Meanwhile, Haley had learned from other Watts' employ

ees that Terry had been playing in a band.  Terry had filed a

workers' compensation claim shortly after his November 1997

injury and received temporary total disability benefits for the

periods he was not working due to his injury.  Haley contacted

Fremont Insurance Agency (Fremont), Watts' workers' compensation

carrier.  Fremont hired a detective who, on January 31, 1998,

videotaped Terry playing in a band and carrying and loading sound

equipment.  On February 3, 1998, Fremont informed Haley what the

detective had observed and informed her that Terry's benefits

would be discontinued.  

		Terry played in the band on five occasions between November 21, 1997, and January 31, 1998.  He played a guitar that

weighed 10 to 15 pounds and used an amplifier that weighed about

40 pounds.  Typically, he played in the band twice a month and

performed in the standing position with the guitar strapped to

his body for a total of three to four hours per performance (40-

minute sets separated by 20-minute breaks).  After November 4,

1997, the band hired someone to move its equipment, and Terry was

only responsible for carrying his guitar and amplifier to and

from the band's performances.

		On February 4, 1998, Terry completed his physical

therapy program.  Riesenberger found Terry's range of motion and

strength to be normal, but Terry still complained of pain and

limitation of activities.  On February 10, 1998, Terry informed

Haley that he would be receiving a return-to-work slip.

		On February 13, 1998, Riesenberger discharged Terry

from therapy with instructions that he refrain from lifting (1)

objects weighing over 50 pounds on an occasional basis over a

full range of motion, (2) objects weighing over 40 pounds on a

frequent basis, or (3) objects weighing over 70 pounds from the

floor to his knuckle.  Riesenberger stated that Terry could

return to work on February 16, 1998.  On February 13, 1998, Terry

informed Haley that he had a doctor's note releasing him for work

with some restrictions.  Haley informed Terry that he would be

receiving a letter from Watts' counsel.  

		Shortly thereafter, Terry received a letter from Watts'

counsel informing him that he no longer had a position with

Watts.  The letter stated the following reasons for Watts'

decision to terminate him:  (1) "your past work record which

reflects work[-]related suspensions and excessive absences"; (2)

"your present employment with other than [Watts] while receiving

benefits from [Watts]"; and (3) "your failure to complete re

quired releases." 

		The ALJ found that Terry had failed to establish a

prima facie case of handicap discrimination in that he had failed to show that an adverse action was taken against him that was

related to his handicap.  The ALJ further determined that Terry

failed to prove by a preponderance of the evidence that Watts

violated section 2-102 of the Act (775 ILCS 5/2-102 (West 2000))

when it terminated Terry.  In concluding his analysis of the

issues, the ALJ also wrote as follows:

		"I find that the inclusion of untrue reasons

for [Terry]'s termination in the February 14,

1998, letter constituted at most a clumsy

attempt to cover the existence of the sur

veillance tape.  In any event, [Terry] loses

because the overwhelming weight of the evi

dence indicates that Watts terminated [Terry]

because of [its] genuine belief that [Terry] had lied to management about the condition of

his back."

In March 2001, the Commission adopted the ALJ's recommended order

and decision.  Terry's appeal of that order is, as stated, No. 4-

01-0321.

		In February 2001, Terry filed his retaliatory discharge

complaint, alleging that Watts terminated him in retaliation for

exercising his rights under the Workers' Compensation Act (820

ILCS 305/1 through 30 (West 2000)).  In April 2001, the trial

court granted Watts' section 2-619(a)(4) motion to dismiss

Terry's complaint (735 ILCS 5/2-619(a)(4) (West 2000)), conclud

ing that the doctrine of res judicata barred it.  Specifically, the court ruled that Terry "had the opportunity to litigate the

reasons for his termination.  The ultimate decision was that

there was no causal relationship between [Terry]'s injury and his

termination.  The issue of why [Terry] was discharged has been

litigated and any causal connections already denied."  

		In May 2001, Terry filed a postjudgment motion and

motion for summary judgment on the question of Watts' liability,

both of which the trial court later denied.  This appeal fol

lowed.       

	II. ANALYSIS

	A. Res Judicata

		Terry first argues that the trial court erred by finding that his retaliatory discharge claim is barred by the

doctrine of res judicata.  Specifically, he contends that res judicata does not apply because the Commission did not have jurisdiction to adjudicate his retaliatory discharge claim.  We

agree.

		"A section 2-619 motion to dismiss admits the

legal sufficiency of the complaint, but as

serts an affirmative defense or other matter

that avoids or defeats the claim.  [Cita

tion.]  The motion should be granted if,

after construing the documents in support and

in opposition to the motion in the light most

favorable to the nonmoving party, there are

no disputed issues of material fact."  Whet stone v. Sooter, 325 Ill. App. 3d 225, 229, 757 N.E.2d 965, 969 (2001).  

We review de novo the granting of a section 2-619 motion to dismiss.  Nowak v. St. Rita High School, 197 Ill. 2d 381, 389, 757 N.E.2d 471, 477 (2001).   

		A prior judgment may have preclusive effect in a

subsequent action under both res judicata and collateral estoppel.  Nowak, 197 Ill. 2d at 389, 757 N.E.2d at 477.  "The doctrine of res judicata provides that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to

them, constitutes an absolute bar to a subsequent action involv

ing the same claim, demand[,] or cause of action."  Nowak, 197 Ill. 2d at 389, 757 N.E.2d at 477.  For the doctrine of res judicata to apply, the following three requirements must be satisfied:  (1) a final judgment on the merits rendered by a

court of competent jurisdiction, (2) an identity of causes of

action, and (3) an identity of parties or their privies.  Nowak, 197 Ill. 2d at 390, 757 N.E.2d at 477.  Different claims are

considered part of the same cause of action if they arise from a

single group of operative facts.  Altair Corp. v. Grand Premier Trust & Investment, Inc., 318 Ill. App. 3d 57, 61, 742 N.E.2d 351, 355 (2000).  

		Exceptions to the application of res judicata exist (Cabrera v. First National Bank of Wheaton, 324 Ill. App. 3d 85, 92, 753 N.E.2d 1138, 1145 (2001)), and the doctrine will not be

applied where it would be fundamentally unfair to do so (Nowak, 197 Ill. 2d at 390, 757 N.E.2d at 477)).  Although res judicata applies to issues actually decided in the original action as well

as to matters that could have been decided, it does not apply

where a limit in the subject-matter jurisdiction of the court

rendering the earlier judgment prevented the plaintiff from

seeking relief.  Cabrera, 324 Ill. App. 3d at 92, 753 N.E.2d at 1145.		

		Citing La Porte v. Jostens, Inc., 213 Ill. App. 3d 1089, 1092, 572 N.E.2d 1209, 1211 (1991) (holding that jurisdic

tion for a retaliatory discharge claim vests with the circuit

court and not the Commission), Terry contends that res judicata does not bar his retaliatory discharge claim because the Commis

sion does not have jurisdiction to hear such a claim.  We agree.  

		The Commission's adjudicatory authority is limited to

the adjudication of complaints filed under the Act.  See 775 ILCS

5/8-102(G) (West 2000).  Under the Act, it is a violation of an

employee's civil rights for an employer "to refuse to hire, to

segregate, or to act with respect to recruitment, hiring, promo

tion, renewal of employment, selection for training or appren

ticeship, discharge, discipline, tenure or terms, privileges[,]

or conditions of employment on the basis of unlawful discrimina

tion."  775 ILCS 5/2-102(A) (West 2000).  The Act defines "unlaw

ful discrimination" as follows:  

			"'Unlawful discrimination' means dis

crimination against a person because of his

or her race, color, religion, national ori

gin, ancestry, age, sex, marital status,

handicap, military status, or unfavorable

discharge from military service as those

terms are defined in this [s]ection."  775

ILCS 5/1-103(Q) (West 2000).  

		Section 6-101 of the Act provides that it is also a

civil rights violation to:

			"[r]etaliate against a person because he

or she has opposed that which he or she rea

sonably and in good faith believes to be

unlawful discrimination, sexual harassment in

employment or sexual harassment in higher

education, discrimination based on citizen

ship status in employment, or because he or

she has made a charge, filed a complaint,

testified, assisted, or participated in an

investigation, proceeding, or hearing under

this [a]ct."  775 ILCS 5/6-101(A) (West

2000).    

Thus, retaliation for filing a workers' compensation claim does

not constitute a civil rights violation under the Act, and the

Commission does not have jurisdiction over such a claim.  Accord

ingly, we conclude that res judicata does not bar Terry's retal iatory discharge claim.

	B. Collateral Estoppel

		Terry also argues that his retaliatory discharge claim

is not barred by collateral estoppel.  We agree.

		The doctrine of collateral estoppel applies when a party participates in two consecutive cases arising on different

causes of action and some controlling fact or question material

to the determination of both causes has been adjudicated against

that party in the former suit by a court of competent jurisdic

tion.  Nowak, 197 Ill. 2d at 389-90, 757 N.E.2d at 477.  

		Collateral estoppel bars a claim when (1) the issue

decided in the first proceeding is identical with the one pre

sented in the current action; (2) there was a final judgment on

the merits in the prior adjudication; and (3) the party against

whom estoppel is asserted was a party to, or in privity with a

party to, the prior adjudication.  Nowak, 197 Ill. 2d at 390, 757 N.E.2d at 478.  A tribunal's finding collaterally estops a

litigant in a subsequent proceeding only if the finding in the

initial proceeding was necessary or essential to the tribunal's

decision.  Ericksen v. Rush-Presbyterian-St. Luke's Medical Center, 289 Ill. App. 3d 159, 167, 682 N.E.2d 79, 85 (1997).

		In Nowak, 197 Ill. 2d at 390-91, 757 N.E.2d at 478, the Supreme Court of Illinois discussed the principles underlying the

doctrine of collateral estoppel, in pertinent part, as follows:

		"Application of the doctrine of collateral

estoppel must be narrowly tailored to fit the

precise facts and issues that were clearly

determined in the prior judgment.  [Cita

tion.]

			Collateral estoppel is an equitable

doctrine.  [Citation.]  Even where the

threshold elements of the doctrine are satis

fied, collateral estoppel must not be applied

to preclude parties from presenting their

claims or defenses unless it is clear that no

unfairness results to the party being

estopped.  [Citations.]  In deciding whether

the doctrine of collateral estoppel is appli

cable in a particular situation, a court must

balance the need to limit litigation against

the right of a fair adversary proceeding in

which a party may fully present his case.  In

determining whether a party has had a full

and fair opportunity to litigate an issue in

a prior action, those elements which comprise

the practical realities of litigation must be

examined."

		In this case, neither the first nor second requirements

for application of collateral estoppel hasve been satisfied.  Watts

contends that Terry's claim is precluded because the Commission

already determined the issue of "why Terry was terminated." 

However, as Terry points out, the precise issue considered and

resolved in the hearing before the Commission was whether Watts fired Terry for discriminatory reasons.  Thus, the focus of that

proceeding was appropriately limited to determining what was in

the minds of Haley and Watts' other managers who decided to

terminate Terry.  See Johnson v. Human Rights Comm'n, 318 Ill. App. 3d 582, 587-88, 742 N.E.2d 793, 797 (2000) (in employment

discrimination litigation, when an employer articulates a legiti

mate, nondiscriminatory reason for its actions, the sole question

is whether the plaintiff can show that the given reason is a

pretext for unlawful discrimination).  Moreover, the Commission's

finding--that Terry was terminated because Watts' managers

believed he lied about his physical condition--does not defeat

Terry's retaliatory discharge claim.  See Clark v. Owens-Brockway Glass Container, Inc., 297 Ill. App. 3d 694, 697-98, 697 N.E.2d 743, 745-46 (1998) (in which the appellate court (1) rejected the

proposition that an employer's reasonably held belief that an

employee lied about her injuries defeats the employee's retalia

tory discharge claim and (2) explained that an act of "retalia

tion" occurs when the employer's action is causally related to

the employee's exercise of rights under the Workers' Compensation

Act).

		Although the Commission determined that Terry was

terminated because Watts' managers believed that Terry had lied

to management about his injury, the Commission neither considered

nor determined whether Terry actually lied about his injury.  Even assuming, arguendo, that the Commission made such a finding, it would not estop Terry's retaliatory discharge complaint

because it would not have been essential or necessary to the

question before the Commission.  See Ericksen, 289 Ill. App. 3d at 167, 682 N.E.2d at 85.  While a finding on Terry's veracity

was irrelevant to the question before the Commission, it is

essential for a determination on a retaliatory discharge claim.

		To succeed on a claim of retaliatory discharge, the

plaintiff must show that (1) he has been discharged; (2) in

retaliation for his activities; and (3) the discharge violates a

clear mandate of public policy.  Stebbings v. University of Chicago, 312 Ill. App. 3d 360, 365, 726 N.E.2d 1136, 1140 (2000).  In Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357 (1978), our supreme court recognized the public policy

favoring the exercise of workers' compensation rights.  A deter

mination of whether Terry actually lied to Watts and Fremont

regarding his injury is essential to the third prong of his

retaliatory discharge claim.  Terry's termination would not be in

violation of the public policy favoring the exercise of workers'

compensation rights if he was filing fraudulent claims.  

		Because the precise issues relevant to Terry's retalia

tory discharge claim were not considered or decided by the

Commission, Terry's claim is not barred by collateral estoppel.

		Moreover, collateral estoppel cannot apply in this case because there has not been a final judgment in the first proceed

ing.  For purposes of collateral estoppel, a judgment is not

final until the potential for appellate review has been ex

hausted.  Ballweg v. City of Springfield, 114 Ill. 2d 107, 113, 499 N.E.2d 1373, 1375 (1986).  Terry filed an appeal of the

Commission's decision, and that appeal was still pending.  Thus,

collateral estoppel does not bar Terry's retaliatory discharge

claim.

		Because Terry's retaliatory discharge claim is not

barred by the doctrines of res judicata or collateral estoppel, we hold that the trial court erred by dismissing Terry's com

plaint.  Accordingly, we reverse the trial court's order dismiss

ing the complaint.

	C. Terry's Summary Judgment Motion

		Last, Terry argues that the trial court erred by

denying his motion for partial summary judgment on the issue of

liability.  We decline to address this issue.

		Because the denial of a summary judgment motion is

interlocutory, ordinarily, such a denial is not an appealable

final judgment.  Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 357, 718 N.E.2d 191, 200 (1999).  However, when a circuit court grants

one party's summary judgment motion as to all issues and denies

the other party's summary judgment motion as to the same issues,

the resulting order is final and appealable.  Arangold, 187 Ill. 2d at 358, 718 N.E.2d at 201.

		Here, however, Watts did not file a corresponding

motion for summary judgment, and no basis exists upon which this

court could consider Terry's appeal of the trial court's denial

of his summary judgment motion.  Accordingly, we decline to

address the trial court's denial of Terry's summary judgment

motion.  

	III. CONCLUSION

		For the reasons stated, we reverse the trial court's

order dismissing Terry's retaliatory discharge complaint and

remand for further proceedings.

		Reversed and remanded.

		KNECHT, J., concurs.

		COOK, J., specially concurs.

		JUSTICE COOK, specially concurring:

		I concur fully in the majority opinion.  I respectfully

suggest, however, that the supreme court reconsider its statement

that "[f]or purposes of applying the doctrine of collateral

estoppel, finality requires that the potential for appellate

review must have been exhausted."  Ballweg, 114 Ill. 2d at 113, 499 N.E.2d at 1375.  The case which Ballweg cites for that proposition appears to deal with law of the case, not with res judicata.  The rule in most jurisdictions appears to be to the contrary.  See Restatement (Second) of Judgments §13, Comment f, at 135, and Reporter's Note to Comment f, Reporter's Note  at 140 (1982).  We should not tolerate inconsistent judgments even if the appeal in the

first case has not yet been decided.  Remedies are available if

the first judgment is subsequently reversed.  See Restatement

(Second) of Judgments §16 (1982).